Constitutional Protections Violated During COVID-19: The 1st Amendment

Dion McNeil 2

This series will highlight how the Constitutional Rights of American Citizens are being violated for the sake of “public safety” amid COVID-19 concerns.

During the COVID-19 pandemic, some State Governments in the United States have ignored 1st Amendment protections. State issued Emergency Orders have been enacted by State Governors. Through those orders, both State Governors and State Legislators have tried to justify the curtailing of Constitutional Rights guaranteed to U.S. Citizens. It is important to take measures to try to curb the spread of COVID-19. However, is it ever acceptable to ignore the basic fundamental rights that a country is founded upon?

The City Councils for Columbia and Charleston in South Carolina have passed stay-at-home ordinances. South Carolina Governor Henry McMaster hasn’t gotten in the way of S.C. Law Enforcement enforcing these orders. These orders would prevent S.C. citizens from peacefully assembling. If this goes unchallenged South Carolina citizens could face similar measures in the future with any subjective reasoning for a State of Emergency Declaration.

These orders were voted on, passed and are being enforced despite South Carolina’s Attorney General Alan Wilson stating that these stay-at-home orders are illegal.

Here is a condensed version of the 1st Amendment provided by Cornell Law University:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

It can be argued that every part of the above quote has been violated either directly or indirectly by the State and Federal level Government. The hindering of religious-based gatherings have occurred across the United States. Peaceful assemblies have been banned as groups of 10, 3, and sometimes just 2 people have been banned in several U.S. states. The freedom to petition the government has been curtailed by stay-at-home orders. One cannot engage in free speech activities such as holding up picket signs for a protest if that person cannot leave their home. Many of these orders are based on opinions and not the advice and guidance of the Centers for Disease Control (CDC).

These blatantly unconstitutional actions have historical precedence. Government convincing its citizenry that fundamental rights come second to the illusion of security and prosperity is exactly how Nazi Germany maintained a mental grasp on its citizens. On December 5, 1930, Joseph Goebbels and a group of Nazi Storm Troopers raided the premiere of a film known as “All Quiet On the Western Front“. Like much of its actions, the Nazi Regime used the idea of “public safety” as one of its justifications.

A Florida pastor was arrested on charges of “unlawful assembly” and ignoring the state’s stay-at-home order. Rodney Howard-Brown, pastor of Revival Ministries in Florida was arrested for having a church service that held more than 500 people. This arrest is unconstitutional given the numerous precedents and rulings that the U.S. Supreme Court (SCOTUS) has provided throughout the years. A filter in which to view a stay-at-home order’s constitutionality is the Lemon Test.

The Daily Counter reached out to the church but was directed to the church’s website. It appears that it is the church’s position that this church, as well as other religious organizations, should be listed as essential services. During a time like these many Americans utilize religious services.

The church released a statement protesting the infringement of religious liberties.

Courts that are lower than SCOTUS must follow the guidelines that were originally set by Chief Justice Warren Burger. Justice Burger set these guidelines as a result of Lemon V. Kurtzman. There are three general guidelines that every lower court has to follow:

  1. No action of the government can create a result of “excessive entanglement” with any religion.
  2. All government actions must be secular.
  3. No government action can have the primary effect of advancing or inhibiting any religion.

The U.S. Constitution and SCOTUS rulings specifically state that religious services are not to be disrupted. Florida’s Constitution states “Religious freedom.There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety.

Pay attention to the underlined sentence. This sentence differs from the U.S. Constitution. Not only does the original document not show this exception for public safety, morals or peace but there have been U.S. Supreme Court rulings that would show why these exceptions are unconstitutional. On February 25, 1963, in the Edwards V. South Carolina case, the Supreme Court of the United States (SCOTUS) ruled in favor of 187 black students who were arrested in response to their peaceful assembly to voice grievances at the South Carolina Statehouse. There were reports of these people being brutalized, roughed up and given overall harsh treatment for peacefully protesting.

The State of South Carolina (S.C.) attempted to argue that for the sake of “peace” and “public safety” that these black students had to be arrested and convicted of breach of peace. There were claims that these students were “violent” even though no convictions or arrests were ever made based on any of the students being violent. This is a case where S.C. Government and S.C. Supreme Court attempted to circumvent the U.S. Constitution for the sake of subjective interpretations of “public safety”. These claims were ultimately proven false and the convictions were overturned with SCOTUS ruling in favor of those black students who committed the act of peacefully using free speech and public displays of protest. 

Instead of being “violent” and “a risk to public safety” the truth was that the students were protesting at the South Carolina Statehouse when Police essentially pushed the students into the street. It was at that point that the students were arrested and eventually convicted for breach of peace and safety to the public. The government supported and created the risk to the public that caused these students to be punished for doing so under the guise of “protecting the public”. In other words, the government offered a cure to an illness that the government created.

Listen to the audio of Edwards V. South Carolina here.

This SCOTUS ruling provides a very important precedent. The threshold for shutting down such an assembly would be violence or a public risk that would make a public assembly dangerous. Since the black students in Edwards V. South Carolina showed no signs of being violent or a risk to public safety, and neither did Pastor Howard-Browne then how would this pastor’s arrest be lawful or constitutional? SCOTUS would rule consistently against South Carolina on grounds of free speech. More examples of SCOTUS rulings involving South Carolina can be found on the South Carolina Bar Association’s website.

How can Pastor Howard-Browne be charged with a crime such as “unlawful assembly” when the 1st Amendment protects the right to peaceful assembly? Again, the exception located in the Florida constitution that allows for the curtailing of peaceful assembly for the sake of “public morals, peace or safety” isn’t located in the U.S. Constitution. Who decides what public morals are? Who can justify an action based on a subjective interpretation of “peace” or “safety”? Wouldn’t this be the reverse of the idea behind the 1st Amendment? Doesn’t the 1st Amendment protect speech that is unpopular or distasteful and wouldn’t that in of itself create a problem with the idea of “public morals”?

If the 1st Amendment establishes protection against the government establishing a religious test then how can that same government ban a religious gathering under any situation? In Capitol Square Review Bd. v. Pinette, SCOTUS ruled in favor of KKK members leaving unattended crosses in public, based solely on the grounds of free speech yet a pastor has to go to jail for having a church service? In 1940, SCOTUS ruled against the State of Connecticut in Cantwell V. Connecticut. In that case, SCOTUS made it clear that both the Federal and State Governments had to respect the peaceful expression of beliefs.

What are the implications of this situation? Are Americans comfortable with the arrest of a pastor for essentially having a church service? Would someone make an exception for this given the COVID-19 stay-at-home orders? When should the 1st Amendment be ignored and who makes that choice?

Now that a pastor providing religious services has been arrested, will armed police officers enter churches that conduct services and arrest clergy and members of the congregation? Wouldn’t such imagery paint an identical picture of what Jewish people in Germany faced in their places of worship? Did the Nazis not use the idea of public safety as a justification to raid Jewish areas of worship?

Is there a crisis that is worth banning people from leaving their homes for whatever reason they choose?

If people are banned from public gatherings, pastors arrested for church services, and police on the streets patrolling for public gathering violations at what point does such imagery not paint the picture of a police state?

In conclusion, here is a quote from George Carlin:

“That’s the way Americans are now. They’re willing to trade away a little of their freedom in exchange for the feeling–the illusion–of security.”

2 thoughts on “Constitutional Protections Violated During COVID-19: The 1st Amendment

  1. I concur with your concerns and objections. The odious Governor of Virginia (the one who almost lost his job just months ago for posing in pictures in blackface) has just imposed a so-called “stay-at-home” order (I went for a good bike ride the moment I heard about it, as the most readily available protest of noncompliance — I’m 75 by the way). These restrictions of gatherings of more than 10 people would have prevented Washington, Jefferson, Franklin, et al, from gathering in Philadelphia to declare independence (see my blog post, at splashingrocks.blogspot.com). That’s why the framers included the right to peaceable assembly in the First Amendment. Keep up the good fight. (I’m a fellow vet, by the way, USMC).

  2. I’m reminded of a common first amendment defense. “Just because I disagree with what you said doesn’t mean I shouldn’t defend your right to say it.” (I’m pretty sure I butchered the exact phrasing, but the point remains the same).

    IMHO, we should weigh the pastor’s actions putting the public at risk very carefully. However, the burden should be on the state to show how the Pastor put these people at needless risk.

    Plus, these people willfully came out to the congregation of their own volition. I don’t think that can be ignored. What, are these individual members of the congregation somehow bereft of autonomy? If we’re going to go full idiot, let’s go all the way. Throw the congregation members in there too.

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